CIHM 
Microfiche 
Series 
(l\/lonographs) 


ICMH 

Collection  de 
microfiches 
(monographies) 


m 


Canadian  Initituta  for  Historical  Microraproducti;>nf  /  Inatitut  Canadian  da  microraproductions  hisioriquaa 


Technical  and  Bibliographic  Notes  /  Notes  technique  et  bibliographiques 


The  Institute  tias  attempted  to  obtain  ttie  best  original 
copy  available  for  turning.  Features  of  ttils  copy  whicti 
may  be  bibliographlcally  unique,  which  may  alter  any  of 
the  Images  In  the  reproduction,  or  which  may 
significantly  change  the  usual  method  of  filming  are 
checked  below. 


D 

D 

D 

D 
D 
D 

D 

D 

D 

D 

D 


Coloured  covers  / 
Couverture  de  ^  juleur 

Covers  damaged  / 
Couverture  endommagee 

Covers  restored  and/or  laminated  / 
Couverture  restaur^  et/ou  pelllculee 

Cover  title  missing  /  Le  titre  de  couverture  manque 

Coloured  mi  is  /  Cartes  geographiques  en  couleur 

Coloured  Ink  (l.e.  other  than  blue  or  black)  / 
Encre  de  couleur  (I.e.  autre  que  bleue  ou  noire) 

Coloured  plates  and/or  illustratkxis  / 
Planches  et/ou  iliustratk)ns  en  couleur 

Bound  with  other  material  / 
Reli^  avec  d'autres  documents 

Only  edition  available  / 
Seule  edition  disponible 

Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin  /  La  reliure  serrie  peut 
causer  de  I'ombre  ou  de  la  distorsk>n  le  long  de 
la  marge  int^rieure. 

Blank  leaves  added  during  restoratnns  may  appear 
within  the  text.  Whenever  possible,  these  have 
been  omitted  from  filming  /  II  se  peut  que  certaines 
pages  blanches  ajout^es  lors  cfune  restauration 
apparaissent  dans  le  texte,  mais,  kxsque  cela  etait 
possible,  ces  pages  n'ont  pas  ete  film^. 


L'Institut  a  mlcrofllme  le  meilleur  examplaire  qu'il  lul  a 
6t6  possible  de  se  procurer.  Les  details  de  eel  exem- 
plalre  qui  sont  peut-gtre  uniques  du  point  de  vue  blbll- 
ographlque,  r^ui  peuvent  modifier  une  image  reproduite, 
ou  qui  peuvent  exiger  une  modifications  dans  la  meth- 
ode  normale  de  fllmage  sont  Indlquds  ci-dessous. 

I      I      Coloured  pages  /  Pages  de  couleur 

I     I      Pages  damaged  /  Pages  endommagies 

I      j      Pages  restored  and/or  laminated  / 
' — '      Pages  restaurtes  et/ou  pellicuiees 

I   A      Pages  discoloured,  stained  or  foxed  / 
' — '      Pages  66cOtor6es,  tachettos  ou  piquees 

I     I      Pages  detached/ Pages  dStachees 

r^f     Showttirough  /  Transparence 

I      I      Quality  of  print  varies  / 

' — '      Quaint  inhale  de  I'impressran 

I      I      Includes  supplementary  material  / 
' —      Comptend  du  materiel  supplementaire 

I  I  Pages  wholly  or  partially  obscured  by  errata 
' — '  slips,  tissues,  etc.,  have  been  refilmed  to 
en:ure  the  best  possible  image  /  Les  pages 
totalement  ou  partiellement  obscurcies  par  un 
feulllet  d'errata,  une  pelure,  etc.,  ont  Me  fllmees 
a  nouveau  de  fafon  a  obtenir  la  mellleure 
image  possible. 

I  I  Opposing  pages  with  varying  colouration  or 
' — '  discolourations  are  filmed  twice  to  ensure  the 
best  possible  image  /  Les  pages  s'opposant 
ayant  des  colorations  variat>les  ou  des  decol- 
orations sont  film^es  deux  fois  afin  d'obtenir  la 
meilleur  image  possible. 


D 


AddHk)nal  comments  / 
Commentalres  suppKmentalres: 


This  ittm  it  film«d  at  ttw  raduetion  ratio  chackad  balow/ 

Ca  dccumant  ast  fiima  au  taux  da  riduction  indiqua  ci-dassom. 

lOX  1«x  18X 


ax 


KX 


J 


12X 


Tha  copy  filmtd  hara  hn  baan  raproducad  thanks 
to  tha  ganaroaity  of: 

Supreae  Court  of  Canada 
OttaiM 


L'axamplaira  film*  (ut  raproduit  grtea  i  la 
g4n*roait*  da: 

Cour  iiipfl—  du  Canada 
Ottaaa 


Tha  imagaa  appaaring  hara  ara  tha  bait  quality 
posalbia  conaidaring  tha  condition  and  lagibiiity 
of  tha  original  copy  and  in  kaaping  with  tha 
filming  contract  apaeiflcationa. 


Las  imagas  suivantas  ont  ttt  raproduitas  avsc  la 
plus  grand  soin,  compta  tanu  da  Is  condition  at 
da  la  nattatS  da  I'axaniplaira  filinS.  at  an 
conformM  avac  las  conditions  du  contrst  da 
filmaga. 


Original  copias  in  printad  papar  covara  ara  fllmsd 
baginning  with  tha  front  covar  and  anding  on 
tha  last  paga  with  a  printad  or  illustratad  impraa- 
sion.  or  tha  back  covar  whan  approprlata.  All 
othar  original  copiaa  ara  filmad  baginning  on  tha 
first  paga  with  a  printad  or  illustratad  impraa- 
sion,  and  anding  on  tha  last  paga  with  a  printad 
or  illuatratad  imprassion. 


Las  axamplalras  eriginaui  dont  la  couvartura  an 
papiar  aat  imprimta  sont  filmta  sn  commsncant 
par  la  pramiar  plat  at  an  tarminant  soit  par  la 
darnitra  paga  qui  contporta  una  amprainia 
d'imprassion  ou  d'illustration.  soit  par  la  sacond 
plat,  salon  la  caa.  Tous  las  sutras  axampiairas 
originaus  sont  filmAs  sn  commancant  par  la 
pramiAra  paga  qui  comporta  una  amprainta 
d'imprassion  ou  d'illustration  at  an  tarminant  par 
la  darnitra  paga  qui  comporta  una  talla 
amprainta. 


Tha  laat  racordad  frama  on  aach  microficha 
shall  contain  tha  symbol  — *■  (moaning  "CON- 
TINUED"), or  tha  symbol  V  (moaning  "END"), 
whichavar  applias. 

Mapa.  platas.  charts,  ate,  may  ba  iiimad  at 
diffarant  raduction  ratios.  Thosa  too  larga  to  ba 
antiraly  includad  in  ona  axposura  ara  filmad 
baginning  in  tha  uppar  iaft  hand  cornar,  laft  to 
right  and  top  to  bottom,  as  many  framas  as 
raquirad.  Tha  fallowing  diagrama  illuatrata  tha 
mathod: 


Un  das  symbolaa  suivants  apparaitra  sur  la 
darniAra  imaga  da  chaqua  microficha,  salon  la 
cas:  la  symbols  —»■  signifia  "A  SUIVRE  ".  la 
symbola  V  signifia  "FIN". 

Laa  cartas,  planchaa,  tablaaux.  ate,  pauvant  atra 
filmts  t  daa  taux  da  reduction  difftrants. 
Lorsqua  la  documant  ast  trop  grand  pour  *tra 
raproduit  an  un  saul  clicht,  il  ast  film*  S  partir 
da  i'angia  suptriaur  gaucha,  da  gaucha  *  droita. 
at  da  haut  an  bas.  an  pranant  la  nombra 
d'imagaa  nAcassaira.  Laa  diagrammas  suivsnis 
illustrant  la  mtthoda. 


1 

2 

3 

1 

2 

3 

4 

5 

6 

MOOCOfV   niSOlUTION   TIST  CHAUT 

(ANSI  ood  ISO  TESr  CHAUT  No.  2| 


1.0 



U  tii     |2.2 

lifKi  ■- 

I.I 

f^  1^ 

1.8 


mti^g 


1.6 


APPLIED  IIW1GE     Ir. 


PRACTICE,  CIVIL  AND  CRIMINAL. 
IN  ONTARIO 


AN  ADDRESS 

BY 

The  Honorable 

WILLIAM    RENWICK    RIDDELL,  L.  H.  D.,  Etc., 

of  TORONTO  (jMlice  of  the  Kinni  Bench  Divn,  H.  C.  J.,  Out.) 

ANNUAL    MEETING 

OF  THE 

New  York   State   Bar  Association 


NEW  YORK,  N.  Y.,  JANUARY  20,  1912 


SUPREME  COURT 
OF  CANADA 

NOV  Z4  19T0 

couR  suPR"^^5 

DU  CA>3ADA 


PRACTICE,  CIVIL  AND  CRIMINAL, 
IN  ONTARIO 


AN  ADDRESS 


V\'ith  ihe  Compliments  of 

William  Renwick   RinnEM 


New    York   bxATE    Bar   Association 


NEW  YORK,  N.  Y.,  JANUARY  20,  1<>12 


PRACTICE.  Civil.  AND  CRIMINAL. 
IN  ONTARIO 


AN  ADDRtSS 

BY 

The    HoNt)RABI.E 

WILLIAM    RENWICK    RIDDELL.  L.  H.  D.,  Etc., 

of  TORONTO  (JuMice  ol  Ihe  King's  Bench  Divn,  H.  C.  J.,  Onl.l 

ANNUAL    MEETIN(i 

OF  THE 

New   York   State    Bar   Association 


NEW  YORK,  N.  Y  ,  JANUARY  20,  1912 


.7r,  ,"i;:<iili-)il  mill  Uciilliiiuii.  Urnllu-r  Mniilu-rs  .■/  Ill,' 
\,-:i-  Viirk  Sliili-  Hiir  .  (<<.niii(i,.i/. 
It  nivf  nil'  ;i  M'ly  yif.il  cUmI  ii  |iU-.imiit  iiidiTil 
t.i  iiiiTi  yriii  iiyaiii.  .Mav  I  ^a\.  Ijfl'ciic  atlackiiiK  iiiv 
ihji'it.  iliat  I  have  lii'cii  vtry  iiiiicli  inliTotiMl  iniUiil 
in  lilt  ilisi-iis>iiiii  wliidi  lia«  jtist  Ir'i-ii  Koim;  .mi- 
ll illiisiralis  wliai  I  liavf  ^i  uMi-ii  «ai.l.  tliai  tlit-  liiiii- 
■  >l  till'  AiiUTii-an  lawyiT  i^  laki-ii  ii|i  nioii-  li\  oni-imi- 
liiiiial  (|m■^ti<ln^  in  unc  ilay  than  lilt  linii'  nf  an  Optari.i 
lawyer  is  in  a  year.  Iiel■a^^<•  yun  knmv.  it  yim  n^'  llie 
Hiiril  "  ('iiiistilntiiin  "  in  the  ^en-e  in  uliii'li  it  i>  ii^ecl 
in  lliesc  I'niied  Slates,  ilu-  ('iinstiiiiiiiin  ut  Cai  .a  may 
Ik  described  by  a  panMly  u|><in  that  laininis  cliapler  mi 
llic  Snakes  nl  Ireland.  " 'llicre  are  no  snakes  in  Ireland." 
( I^iijfliter.  I  We  Ivve  nu  I'oiisiiiutinii  in  (anaila  in  the 
sense  in  wliieh  you  use  the  term.  The  Parliaments  in  our 
Diiminiiin.  like  the  lin|>erial  I'arliaiDent  in  l'!n);land,  can 
within  the  amhit  ut  tiieir  jnrisilietiun  do  anytliinj;  which 
is  not  naturally  ini|K>ssil)le:  indeed  it  is  a  ma.\iin  among 
our  I'auadian  as  amonj;  i;n),disli  lawyer  that  Parliament 
can  do  anythinj;  except  make  a  man  a  woman,  or  a  woman 
a  man.     i  Laughter. ) 

When  I  read  the  announcement  lliat  I  was  t.i  read  a 
paper  to  this  .Association  I  was  struck  s.jinewliai  with 
terror  —  and  1  made  np.my  mind  I  should  at  once  throw 
myself  uixin  the  mercy  of  the  court  and  confess  iiumedi- 
ately  that  I  had  no  paper.  That  is  due  to  more 
than  one  cause,  in.ssihly;  in  part,  perhaps,  to  the  fact  that 
I  have  tiiy  own  share  of  judicial  teni|K'ranient.  which,  of 
course,  you  know  is  delined  l>y  .\lr.  Dooley  somewhat  in 
these  words.  He  says,  "  Ilinnessy,  I  would  like  to  be  a 
Judsje,  1  have  {he  judicial  temperament."  .Says  Ilinncssv, 
"What  is  the  judicial  tetnperanient  ?  "  Says  Do.iley.  "I 
don't  like  work."  (I.auKbtcr. )  Rut  in  justice  to  inyself. 
I  cannot  say  that  is  the  only  reason.      ( l.an.nhter,  i     One 


other  reason  i,  iliat  we  Iiave  still  in  Ontario  an  aliMiivl 
siiper^'ition  iliai  a  Jiislicc  of  Ills  Majesty's  Hendi  <inKlit 
t(i  do  at  least  seme  jiidieial  work  —  oeeasi.)n;illy.  ( l-aiii^li- 
ter.  I  1  know  it  i,.  sujjjjesied  that  -i>n'e  of  my  jnclicial 
lireiliren  disrejiard  that  sn|ier-iition  to  a  very  great  extent 
—  one  oi  tlteni.  indeed,  when  he  received  Her 
N.aie^ly's  Warram  a|i|>ciintinf;  him  one  i>t  Her  jndges, 
inimediately  |iroieeded  to  sell  his  library  and  Imy  a  new 
gnn.  ( I-anghter.  I  AH  of  its  do  not  have  the  courage 
that  gentleman  had.  we  are  not  so  greatly  daring,  and  con- 
.st(|nently  some  of  its.  at  least  occasionally,  do  a  little  Hidi- 
cial  wiirk. 

In  the  short  lime  I  was  at  home  since  1  receiied  the  invi- 
tation to  write  a  |>a|K'r  on  this  snhject.  I  was  exceedingly 
lins\  and  since  1  left  home  I  have  been  in  a  continued 
series  \>\  imellectnal  dehanchery  in  which  there  was  no 
"morning  after  the  night  before"  only  because  the  night 
before  extended  into  and.  as  it  were,  absorbed  the 
morning  after:  and  I  have  not  had  time  to  reduce  any- 
lliing  to  writing.  lint  it  may  ]>erhaps  console  vott 
a  little  bit  to  know  that  some  vears  ago  I  w  oie 
for  my  friend.  Dr.  I,awson.  the  Dean  of  the  Faculty 
of  Law  in  the  University  of  Missouri,  a  short  article  upon 
the  Omrts  and  the  Practice  in  Ontario.  I  did  iifit  know 
until  I  came  to  this  city,  and  indeed  not  until  yesterday, 
that  he  had  published  it;  but  you  will  find  soiuc  of  it  in 
the  I'orty-fourtli  \'olume  of  (he  .American  Law  Review, 
at  page  507.  If.  however,  you  or  your  secretary  desire  I 
should  write  a  paper  so  that  it  may  appear  upon  your 
minutes.  I  shall  be  deligliled  to  do  so  as  soon  as  I  get  home 
and  shake  off  that  teiuperanient  which  I  find  growing  upon 
me  as  years  go  by.  and  get  a  little  leisure  so  [  can  do  so. 

The  courts  in  Ontario  are  all  one  court  (speaking  of 
tlie  Superior  Courts).     Before    rSRr   we  had  luo  conctn- 


rem  Law  Courts  ami  a  Cimrt  nt  riianci-ry.  In  iSSi,  I'.il- 
lowing  the  mother  country  —  and  the  mother  c(nuilry  tol- 
lowinK  tile  State  of  New  York,  hccause  of  course  tlie  State 
of  Xew  N'ork  was  the  pioneer  in  llial  rej^ard  —  we 
abolished  all  the  com'ts  then  existing;  in  the  rro\inee  of 
Ontario,  which  were  the  two  Common  l.aw  ('(■uri>,  the 
Court  of  ("iiancery  and  a  Court  of  Appeal;  and  made  one 
^'eneral  conn,  ihe  Supreme  (.'ourt  of  Jiidicature.  That  we 
divided  in  two  hranches.  one  the  Conn  of  Appeal  and  the 
other  the  High  C<jurt  of  Justice:  and  the  lliijh  Court  of 
Justice  was  divided  iiUo  three  hranches  or  di\isitin>.  A 
fourth  Division  has  since  heeii  adiled  to  the  llij;h  Court. 
.\  jud,i;e  can  sit  in  any  of  these  Divisions  or  in  the  C'lurt 
of  .\p])eal;  any  Judge  of  the  Supreme  Comt  of  Judica.ure 
luay  to-day  he  trying  a  nuirder  case  and  to-morrow  he  sit- 
ting in  the  Court  of  .\p|)cal  or  Divisional  Court;  hut  as  a 
rule  the  High  Court  Judge  remains  in  the  High  Court  and 
does  not  sit  in  the  Court  of  .\ppeal  —  although  he  may  do 
so  when  called  uixni  by  the  Chief  Justice.  In  om*  practice 
there  is  n<i  distinction  between  law  anil  e(|uity,  and  every- 
thing is  tried  in  the  same  court;  where  tlie  rules  of 
etjuity  and  the  rules  of  law  do  not  agree,  the  rules  of  eijuity 
prevail  —  we  have  abolished  ( following  the  mother 
country )  the  distinction  l)etween  law  and  ecpiity  in  that 
regard.  With  the  exception  of  a  few  cases,  few  compara- 
tively in  number,  although  of  great  im|)ortance  sometimes, 
every  matter  which  is  brought  liefore  the  Court  is  brought 
by  Writ.  If  you  want  a  will  interpreted,  or  anything  of 
that  kind  where  there  are  no  facts  to  be  determined,  then 
you  may  bring  it  before  the  Court  by  an  originating  sum- 
inons  or  notice  of  motion.  Sometimes  counsel  get  together 
and  state  a  case  and  that  may  be  heard  before  the  Court, 
without  Writ.  Feigned  issues  are  not  allowed  with  us; 
neither  is  there  any  compulsory  submission  to  arbitration. 


Outside  of  such  cases  as  I  have  mentioned,  everything  is 
begun  by  a  writ,  and  that  is  su  whether  it  be  t'lM-  damages 
for  slander  or  uikju  a  promissory  note  or  c>n  a  mortgage  — 
\vhate\er  anybody  wants  to  sue  for  is  sued  for  by  way  of  a 
writ.  In  this  writ  the  cause  of  action  is  set  out  in  the  most 
general  terms.  The  writ  is  served  on  a  coqxiration  by  serv- 
ing an  otilicer  of  the  corporation,  on  a  lunatic  by  serving 
the  lunatic  or  his  committee  or  the  person  in  whose  charge 
he  is.  It  may  be  served  (^n  a  married  woman;  because 
there  is  no  distinction  between  married  women  and  rulier 
women  in  that  regard  in  Ontario.  On  the  service  of  the 
writ,  the  defenilant  is  given  ten  days  to  appear.  One  may 
si)ecially  appear' simply  lo  dispute  the  amount  of  damages. 
If  that  is  done,  then  it  is  referred  to  a  master  at  once  to 
determine  the  amount  of  daniaj;es  witliout  further  jilead- 
iug.  If  there  he  a  general  appearance,  the  practice  is  dif- 
ferent. Some  writs  may  be  endorsed  specially,  as  we  call 
it.  that  is  |)rattically  what  you  might  call  li(|uidated  claims 
set  out  on  the  writ.  If  an  apj)earance  be  entered  to  a 
specially  endorsed  writ,  an  application  may  be  made  by  the 
plaintiff,  if  so  advised,  to  the  Master  to  strike  out  the 
ap])earance  and  cause  judgment  to  be  entered  if  he  can 
show  that  there  is  no  defense.  That  can  Ix"  shown  by 
atVidavit  on  the  ])art  of  the  plaiiitil'f  himself.  If  the 
defendant  does  not  answer  that,  judgment  goes  against 
him.  1  le  may  answer  by  affidavit,  he  may  be  exam- 
ined under  oath  before  a  master  on  his  affidavit,  and 
if  it  appears  there  is  really  no  (juestion  at  all  to  be  tried, 
and  the  appearance  is  simi)ly  for  the  purj>ose  of  delay,  the 
appearance  is  stricken  out  and  judgment  entered.  If  there 
is  a  plausible  case  tu  be  tried,  the  Courts  do  not  cause 
the  apj)earance  to  be  struck  tmt.  A  statement  of  claim 
is  delivered  by  the  plainiifi.  the  statement  of  claim  corre- 
sixmding  to  the  "Id  bill  of  complaint  in  cfpiity  or  to  tlie 


declaration  in  tlie  common-law  c"mt>.  'Ilie  statement  of 
claim,  according  to  our  rules,  must  set  out  facts,  not  ci>u- 
clusions  of  law.  All  the  facts  upon  which  the  plaintiff 
desires  to  base  any  claim,  must  be  set  out  and  the  state- 
ment of  claim  is  divided  up  into  paragrapiiti  lor  con- 
venience. Now.  it  may  be  that  the  statement  of  claim 
does  not  disclose  any  cause  of  action.  Demurrers  in 
form  are  abolished;  but  we  have  denuirrers  in  sub- 
stance. .\pi)lication  may  be  made  to  tlie  Court  to  strike 
out  the  statement  of  claim  as  disclosinjj  no  cause  of  action  ; 
and  if  that  ap|)ear.  judfjuiein  will  tie  entered  for  defend- 
ant by  the  Court,  iniless  the  jiIaiinitT  is  in  [nisiiion  to 
amend,  .\fter  the  statement  of  claim  has  lieeu  ilelivered 
and  is  not  deuuirrable.  usiuf,'  the  old  expiession.  i.  t\.  ii 
cannot  be  struck  out.  the  defeudarit  may  not  be  able  to 
answer,  may  not  be  in  a  |Hisition  to  nnderstaml  precisely 
what  the  i)laintitt"s  claim  is.  and  he  may  demand  panicu- 
lars.  If  particulars  are  not  furnished  he  mav  ha\e  par- 
ticulars ordered  by  the  .Master  or  Jud,i;e.  Then  he  serves 
and  files  a  statement  of  defense.  Tlie  statement  of  defense 
must  set  out  al.so  the  facts  on  which  the  defendant  relies 
for  a  defense.  I  am  sorr)-  to  sa_\"  —  perhaps  1  ou^hi  not 
to  say  that  I  am  sorry,  because  I  am  one  of  tlio^e  wlio 
have.  collecti\ely.  a  ri.i^ht  to  clianj^e  it  if  thought  fit  —  I  am 
sorry  to  sa_\'  that  in  tuir  practice  wliere  an  alle.i;ation  in  the 
statement  of  claim  is  not  speciticall}'  a<lmittcd  it  is  taken  to 
he  denied.  I  think  very  nnich  better  is  the  Knglish  practice 
in  which  every  allegation  in  the  statement  of  claim  is  taken 
as  true  unless  it  be  si>ecifically  denied. 

-\.ffain.  suppo.se  the  statement  of  defense  sets  up  no 
real  defense  to  the  action,  a  tnotion  may  be  made  by  tlie 
plaintiff  to  strike  out  the  defense  and  have  judgment  in 
precisely  the  same  way  as  the  defendant  had  a  right  to 
move  to  strike  out  the  plaintilt's  statement  of  claim.     As 


>"'in  ,i>  the  ■.laii'MK'ni  nf  ik-ti'iiM'  i>  in.  citlicr  party  lias  a 
nulii  1.1  MTVL-  wlial  is  called  an  "Order  to  Prciduce,"  direct- 
mi;  ihe  cipiinsit,'  party  tn  pr.idnce  nii  iiatli,  all  documents, 
C"pie~  c.f  diiciiiiieiits.  etc..  etc..  which  lie  lias  or  has  had  in 
Ills  pissessinn  heariii;;  i.ii  the  issue  ti,  lie  tricil.  Then  either 
|iariy  may  lie  esaiiiiiieil  under  ciatli  hy  the  other  j,'enerally 
upon  the  whole  ca^e.  It"  a  cor])oratioii  he  one  of  the  parties 
to  ilie  action,  an  litticer  of  the  corpoi-ation  is  selected  hv  the 
o|ipoiienl,  who  may  he  examined, 

Xow.  there  is  a  j,'rcal  deal  of  difference  of  opinion  as  to 
the  value  of  this  '■  eNinnination  for  di.scovery  "  as  we  call 
it.  Ill  practically  every  case  in  Ontario  there  is  an  exam- 
ination for  discovery.  That  increases  the  cost  of  the  action 
undoubtedly.  I  heard  the  other  day.  very  much  to  my 
astoni.shiiieiit.  at  a  meeting  of  the  Ontario  liar  .\ssociation 
which  I  attended  lielore  1  had  the  pleasure  of  meeting  vou 
here,  one  very  eminent  iiiemher  of  the  Kar  say  that  an 
e.xaniinatiou  for  discovery  was  absolutely  useless  except  to 
show  tl"  opiKisitc  side  what  one's  case  was.  In  iiiv  own 
experience.  I  did  not  find  this  to  he  the  case.  Mv  e.xperi- 
ence  (and  1  know  the  experience  of  a  ;,'reat  manv  others 
practicing  at  the  Har  is  the  same )  was  that  the  "  cxamina- 
tioii  for  discovery  "  is  an  exceedingly  valuable  pi-oceeding. 
When  you  examine  the  other  side  for  discovery  you  find 
out  what  his  case  is.  It  is  true  you  must  disclose,  to  a  cer- 
tain extent,  your  vn  ca.se;  but  that  is  not  always  of  much 
importance.  I  have  found  that  the  examination  for  dis- 
covery leads  10  the  settlement  of  at  least  one-third  and 
perhaps  more  of  the  cases  which  would  otherwise  be  tried, 
and  I  have  found  it  exceedingly  valuable.  But  opinions 
diflFer  in  that  regard. 

In  a  great  many  instances  the  plaintiff  also  requires  to 
make  application  to  the  Master  in  order  to  have  particu- 
lars ticlivercd.     Particulars  may  be  required  to  be  deliv- 


eml  (if  the  .stati'imMit  oi  tia-  (IfU-iisu.  iIku  i>  hIi^u  paniciilar 
111:11  UTS  ihc  (k'ffiicliiiit  relics  mi  fur  liis  ilefeiise.  When 
deliveriiij,'  a  stateiiiciit  of  ilefcnse.  tile  ilefemlaiil  may  coiiii- 
terclaiiii  fur  any  claim  lie  lias  ajiaiiisl  the  iilainlilT  .jii  any 
cause  nf  action.  In  an  action  liroii;;lit  on  a  iinjiiiis>,  ,rv 
note  a  connterdaim  may  he  hronijlit  of  a  claim  for  lihel  — 
with  this  provision,  liouever.  that  if  the  Conrt  sees  that  the 
issues  shr.nlil  ii,,i  he  tried  lonether  the  I 'oui'l  nijiy  strike  out 
the  connterdaim,  or  order  it  to  lie  trie.l  ai  a  diiVerem  time 
from  the  j;eneral  action. 

Then  we  come  doun  to  the  trial.  We  ha\e  llie  itirv 
system  the  same  as  yon.  hm  I  il,,  n,,'  iliink  ue  are  i]iiiie 
so  —  I  shall  not  say  crazy.  I  knou  hetler  than  to  say  that  to 

lawyers  —  hnt  we  are  n  n  si .  wililal  ( that  is  .-i  ^ 1  «  ,  ,rd  1 

to  the  jnry  system  ;is  yon  are.  'I'liere  are  cert.iiii  ca~es 
such  as  maliciuns  prosecnlion.  lihel.  slander,  action,  ,,i  that 
character  which  are  tried  In  a  jury  unless  li, ,ii'  p.inies 
a;.;i-ee  that  they  he  tried  hy  the  .Inil.ne.  In  nio-t  ins;.-uices 
ihey  are  tried  liy  the  jury  —  I  mean,  false  impri^onmen; 
and  that  son  of  thiii.i;-.  l-'.i|nitahle  issne,  uhich  liefore  llie 
Jndicalnre  .\cl  of  iSSi  were  Irieil  in  the  (  oint  of  (h.-in- 
eery,  are  tried  liv  the  Jndse  alone,  unless  the  Jnd.ije  direct 
them  to  he  trieil  liy  the  jnry.  It  may  sometimes  ha|ipeii  — 
I  dare  say  it  ha|ipens  in  the  experience  of  every  lawver 
—  that  an  e(|nilahle  issue,  an  issne  that  is  really  nimialile. 
comes  np  aiv  ,ifter  all  it  Inrns  ont  to  lie  a  pure  i|nestion  of 
fact,  it  tnrns  out  that  the  case  will  depend  npon  the  deter- 
mination of  a  i|nestioii  of  fact,  anil  that  |)erhaps  npon  the 
credihility  of  two  witnesses;  ami  a  Jnd.^'e  sonielimes  likes 
to  cast  the  responsihility  npon  a  jnry  and  let  a  jnry  tind 
ont  which  one  of  those  two  men  is  lyin,;;.  if  not  huth  of 
tlieni.  .\ccordingly  the  Judge  has  the  |»iwer  to  direct  e\en 
an  eipiilahle  issue  to  he  tried  hy  a  jtirv. 


(Jmsiilc  ijf  tlicse  1  Iiavc  alreaily  siKikcn  of  every  issue 
111  i.iir  llifih  fijiirt  ut  Justice,  iir  in  mir  County  Courts,  may 
lie  trieil  by  a  .Iu(lf;e  if  lie  sees  fit.  If  either  party  to  an 
action  desires  a  case  to  be  tried  by  a  jury  rather  than  by 
a  .luilKe,  he  tiles  what  is  called  a  jury  notice.  If  no  jury 
notice  is  filed  the  case  j,'oes  on  the  non-jury  list  and  is  tried 
without  a  jury  unless  a  Jndf;e  sees  tit  to  transfer  it  to  the 
jury  h-t.  If  a  jury  notice  he  served,  the  case  j,'oes  on 
the  jury  list,  and  when  it  coines  clown  for  trial  the  Judge 
may  say.  "  I  will  try  this  case  myself."  and  there  is  no 
appeal  from  that.  The  Jndfje  is  ahsohne  master  of  the 
situation.  Sometimes  a  plaintitY  or  defendant  asks  that  the 
jury  notice  be  dispensed  with  and  the  case  tried  without  a 
jury.  Sotnctimes  both  of  them  agree  it  should  not  be  tried 
with  a  jury,  sometimes  they  have  agreed  it  ought  to  be 
tried  by  a  jury;  but  whatever  they  may  say.  the  Judges 
have  it  iti  their  own  ixiwer  to  try  a  case  without  a  iury; 
in  a  very  great  inajority  of  ca.ses  the  cases  are  tried  with- 
otU  a  jury  e.Ncept  those  particular  cases  I  have  mentioned, 
and  added  to  that,  accident  cases,  which  are  Incoming  mire 
and  more  frequent. 

The  old  French  systetn,  the  Canadian  system  before 
i/.VJ.  was  to  tiy  all  issues  without  a  jury  and  by  Judges 
alone.  When  Canada  was  coiKptered  in  1759  bv  the 
Rriti.sb.  and  particularly  in  1763  when  the  Royal  Pnx:la;  1- 
ation  was  issued,  the  English  law  was  introduced  and 
juries  were  introduced  also.  The  I'Vench  Catiadians  could 
not  understand  how  the  Engh.shmeti  would  sooner  have 
their  pro|)erty  rights  determined  by  the  agency  of  tailors 
and  slioemakers  than  by  Judges.  That  same  idea  is  still 
prevalent  in  Ijiwer  Canada.  Oueljec ;  and  it  is  becoming 
more  an<l  more  prevalent  in  the  Province  of  Ontario,  and 
we  are  trying  fewer  and  fewer  cases  bv  juries  everv  day. 
If  a  case  is  tried  by  a  jury  ten  arc  rci|nircd  to  agree  in 


order  tu  tiiiil  a  verdict.  If  a  jury  ^lll.ldd  un<  afjree.  the 
Judge  may  discharge  thcni  an<l  eitlier  put  the  case  over 
or  call  another  jury.  I  follow  cither  jiractice,  according  as 
it  seems  to  me  more  couveiiiem.  Sometimes  when  a  case 
has  taken  a  long  lime  anil  other  litigains  have  heen  wait- 
ing with  their  witnesses,  it  does  mrt  .seem  fair  to  give  these 
|)eo|)lc  whose  jttry  have  disagreed  another  chance  at  the 
e.xpen.se  of  those  who  ;iave  hccn  wailing.  Sometimes  it 
seems  to  lie  alisurd  to  ]i(.st|ione  V  a  fntnre  assize  a  case 
which  iitght  to  he  tried  forthwith,  ami  we  call  a  new  jnrv; 
or  what  is  more  likely  to  he  the  case,  we  discharge  the  jnrv 
anil  try  it  then  and  there  anil  tints  dis|>o,se  of  it. 

If  the  jury  finds  a  verdict,  tlie  .Indge  lias  no  power  to 
award  a  new  trial.     There  must  he  an  ap|ieal. 

.\u  appeal  may  he  taken  to  ilie  Divisional  Cour>  of 
the  High  t'ourt  of  Justice.  The  Divisional  Court  con- 
sists of  three  Judges.  We  have  four  Divisional  Courts, 
and  any  memher  of  any  Divisional  Court  may  sit  in  any 
Divisional  Court,  When  counsel,  as  tliey  sometimes 
do.  .skinnisli  for  Judges  —  I  supixise  that  is  entirelv 
unknown  in  your  practice. —  hut  it  is  said  that  in  Ontario 
they  do,  and  they  |)ostiKine  their  cases  not  uncommonly, 
it  is  said,  on  account  of  the  ahsence  of  necessary  and 
material  Judges.  (Laughter.)  \"ow,  I  am  glad  that 
e.xcites  your  amusement,  hecause  it  proves  to  nie  vou  can- 
not have  anything  of  that  kind  in  your  practice  —  ulien 
coun.sel  have  skirmished  for  Judges,  very  often  tliev  find 
that  very  Judge  whom  they  are  anxious  to  avoid  sitting 
up  in  the  Divisional  Court  smiling  at  them.  The  grounds 
of  appeal  to  the  Divisional  Court  are  very  much  as  in  vour 
apjjcals  here,  verdict  against  evidence,  against  the  weight 
of  evidence,  sunmse,  ahsence  of  witnesses,  e.sclusion  of 
evidence  and  adnn'ssion  of  evidence,  and  all  that  sort  of 
thing.     We  do  not  have  very  mttch  hother  ahout  adniis- 


sidii  (jr  rejtftioii  ni  i-viilence  in  our  Courts;  unless  «f  can 
see  that  the  exclusion  of  cviilence  or  tlie  a<lniissi()n  of  evi- 
dence has  le<l  lo  Mjnie  injustice,  then  we  pass  it  bv.  Mat- 
ters ol  law  as  a  rule  are  the  (letermiiiiiij;  matters  in  the 
.\|i|)i'llate  (oiiri;  ahlionj^h  ihere  are  occasionally  cases  in 
winch  a|>|>c-al>  snccee<l  ii]>on  the  •jround  of  the  non-ailini>- 
sioii  of  evidence,  or  ii  ,■  ailini>sion  .if  cviilence  which  onj,'ht 
not  to  have  been  achnitteil.  If  a  case  is  tried  ln'fore  a 
.lnd},'e.  an<l  he  has  ini|>ro|>erly  rejected  evidence  —  and  1 
may  >ay  that  this  i>  tlie  rarest  of  all  contiiif;encies.  liccan^e 
as  a  rule  we  admit  the  evidence  subject  to  objection,  and 
ibeii  we  never  all'.w  it  to  intlnence  lur  mind,  of  course  — 
if  a  Jiidf;e  lias  reft:sed  the  evidence  'Vipropcrlv.  the 
Divisional  Court  as  a  rule  does  n,,i  >fnd  the  c;i>e  back  for 
a  new  trial,  bin  the  t'ourt  often  >a>  >.  "  \\"c  will  >it  on  Midi 
a  d;iy.  y..u  can  lirini;  the  evidence  yc^n  doired  the  liidye  to 
hear  ,iiid  wc  will  be.ir  it  Iierc."  We  hear  the  evidence  an.! 
deierniiiie  the  cise  llien  and  there.  ■■  iih..ui  ,eiidin.;  it  back 
with  all  the  ri~k.  cN]ieii>c.  incoinciiience,  annoyance  an! 
tr..nble  of  a  new  trial,  i  Applause.  I  If  there  is  a  row  abniit 
ilie  pleailin.ijs  —  because  even  yet  we  have  some  ])eople  wii.j 
talk  alK>ut  pleadings.  tli.>us,di  pleadings  are  pretty  nearlv 
defunct  in  our  Courts,  we  kn.iw  tlieiii  by  name  and  kn.iw 
them  by  sij;ht.  but  we  jiay  very  little  attenti.m  lo  tlieni — 
if  there  is  any  row  about  the  pleadiiif^s  we  sav.  "  \ery  well, 
we  will  amend  tlie  pleadinfrs,"  If  a  lawyer  says.  "  If  tliat 
amendment  lia.l  Iicen  ni.-ide  in  tlie  Cnirt  bel.nv.  we  slio'.ild 
have  had  other  evidence."  we  may  say.  "  \'erv  well,  what 
day  will  suit  y..u?  We  sliall  hear  your  witnesses."  One 
of  our  snlistamial  rules  and  <ine  of  the  rales  more  beiie- 
licial  than  [K-rhaps  fifty  of  the  other  nilcs  is  this,  all 
amendments  are  t.i  he  made  which  are  necessary  in  order 
that  juds,'ment  shall  lie  slivcn  acording  to  the  very  ri.^dit 
and  ju.stice  of  the  .    se.     (Applause. )     Xo  case  in  Ontari.) 


1,5 


fails  friiiii  <luiiTl  i<i  I'oriii  —  ili:ii  i-  mn-  of  ,,iir  niloJ. 
Affaiii.  iici  (lisfffjanl  ■if  f.iriii^  laiil  iI.hmi,  ..r  .li>iL-j,':inl  •■i 
tile  time  uniliT  wliicli  ct-naiii  pn.ci'i-ilinjr-  --liniiM  Iii.'  taUfii, 
no  (lisrfnanl  nf  icTiiiiiinli,t;y,  afOM'diii^'  l.i  ..ur  ]>i-ai1Kf. 
Ixifs  a  man  win.  lia>  a  riyhl.  of  Ir-  rii,'lu,  l)i~iTL;anl  of 
form  iloivs  noi  nnllifv  tin-  |iriii'tT.liMj;>. 

I  lu'M  if  the  Divisional  Court  is  tluini^lit  liy  uiilu'r  j.art) 
to  have  made  a  mistake,  there  is  an  appeal  to  the  Conn  of 
Apjieal  eoni|K,seil  .pf  live  .Unices.  Tho-c  appeals  are  hear.l 
In  ilie  full  Conn  of  live  Indices,  hnt  are  not  very  common 
I  he  more  eommon  practice  i-  to  appeal  from  tlie  trial  Jnilge 
(hrecl  to  llie  (..nrl  i.f  .\p|>tal,  >kippinj;  llie  l)i\i>ioiial 
(  onrt ;  and  tho^e  are  not  -o  very  conniion  either.  These 
apjicals  from  the  trial  .liid.t,'e  to  the  C.mn  of  Ap|R-al  direct 
may  he  heard  In  three  Jndf;es  of  the  Court  of  .\ppeal  or  all 
the  live.  I  will  read  yon  froiti  the  article  which  [  wrote 
some  yetirs  af;o  of  the  appeaK  in  ji)oS.  "  In  i()ii«,  i.e;^ 
cases  were  tried  hy  the  Ili.i;h  Conn.  iSci  of  these  were 
.•'p|je;iled  ti'  the  Divisional  Conrt  and  lyt  dismissed.  37 
allowed.  10  varied  and  j  still  undisposed  of.  The  appeals 
direct  trotii  trial  to  the  Coint  of  .\i)peal  were  dj ;  j8  were 
dismissed.  14  allowed.  S  varied.  1  _•  remained  nndi.s|),.sed 
of."  Because  even  at  thai  laie  dale  people  tried  to  settle 
their  cases. 

.Ml  ap|)eals  from  the  Coniny  Conn,  which  li.is  jurisdic- 
tion up  to  six-  or  eij,dit  hntidred  dollars,  come  to  the 
Divisional  Court,  as  appeals  from  the  IliKh  Conn  of 
Justice  conies  to  the  Divisional  Conrt.  Countv  Court 
Jtid,i;es  are  tiicmliers  of  our  Rar  of  fn  years'  standint;. 
They  are  ap|K)inted  hy  the  Dominion  .Xdttiinistration  for 
life.  The  practice  is  precisely  the  same  as  in  the  lliudi 
Court.  C)f  .ill  the  cases  in  the  Divisinnal  Court.  544  in 
all.  includin.!?  Mte  180  from  trials,  only  43  appeals  to  the 
Court  of  .Apiwal.  of  which  -'3  were  di.smi.ssed.  11  allowed. 


'4 


.i  varinl.  Tlic  uIkivc  li|;nrcs  :ire  ilcrivnl  frniii  the  repnrt 
iif  tlif  lns|)cci(ir  (if  l.f«:il  Offires.  IVcnn  the  Court  ni 
A|>|)eal  ti>  till-  Supreim'  Court  at  Ottawa  in  n/nX  are 
rfiHirtcil  ill  the  Sii|)retiie  Cmirt  ke|Kirts,  i^  cases.  7  (hs- 
iiiisseil.  _>  allciwed  I  there  tiiaylw.  nn  dmiht  are.  smiie  cases 
nut   rc|»irteil.  hnt  very   |V«  1. 

I'niiii  the  Cmirl  ni'  ,\|)|ieal.  iinixirtaiit  cases  may  be  taken 
111  the  Siipreiiie  Ccmrt  iif  Canada.  Rarely  is  iliere  an 
apiieal  fnmi  tlie  Divisiunal  Cmirt  tu  the  Cniir'  ,i,'  Appeal; 
still  rarer  is  there  ati  a|>|)eal  frmn  the  Cuiirt  .if  ppeal  to 
the  Sitprenie  Conrt  of  Canaila,  which  is  an  entirely  different 
(  iiiirt.  If  yiin  p-actice  in  l"aifa<la  ynn  had  lieller  have 
yimr  pleadinjjs  in  pniiier  sha|R'  liefiire  vein  f-Kt  in  tlic 
Snpreine  Cunrt  uf  Canada  hecanse  that  heing  a  different 
(  iinrl.  it  takes  the  pleadings  as  hniii(,dit  to  it  frotii  the 
itiferior  C.inrt.  I'rotn  the  Conrt  of  .\ppeal  to  the  Supreme 
Conrt  at  Ottawa  in  kjoX  there  were  re|virted  in  the 
.'^npreine  Conrt  KeiKirts  nine  cases,  seven  distiiissecl,  two 
alloweil.  In  very  rare  cases  there  are  also  ap])eal'  frotn 
our  Court  of  .\ppeal  which  are  taken  across  the  .Atlantic 
instead  of  >;■  in);  to  the  Supreme  Conrt  of  1  anada — 
and  particularly  in  constitutional  cases  (Ijecanse  I  am 
floiiij;  tn  withdraw  wli.it  I  said  about  the  Constitution 
a  minute  or  two  ago)  —an  appol  is  taken  to  the  Judicial 
Comnn'ttee  of  the  Privy  Council  in  Downinf;  street.  West- 
niinsier.  We  have  a  kind  of  constitution  ( althonf;h  we  do 
not  call  it  that)  liy  the  British  Xorth  .America  Act.  The 
subjects  of  lejjislalion  are  <livided  between  the  provinces 
and  the  Oomitn'oti.  and  sometimes  we  have  disputes  as  to 
whether  the  IXiniinion  has  the  rif;ht  to  pass  leRislation  Ui>on 
a  particular  sithject,  or  whether  the  province  has  a  right 
to  pass  legislation  niKin  that  |)articnlar  .subject;  we  do  not, 
however,  generally  talk  about  "constitutional"  and  "uncon- 
stitutional." but  we  use  the  terminology  "  iiltia  vires  "  and 


"  intra  lircs,"  (Xcasioiially  ami,  as  I  have  >ai(l.  iwniiii- 
larly  ivliere  a  c|iiestii)n  iif  ultra  viris  is  cmiccrned,  an  apical 
is  taken  to  tlit  Frivy  C'oitiKil.  I  have  t;iv<.'ii  an  accminl  uf 
the  Privy  Cdiniiil  in  an  adilress  tn  the  Missmiri  liar  As^n- 
cialiim.  printed  in  44  American  Law  Review,  iwjje  Mix. 
In  the  I'rivy  I'unncil  in  iijoSare  re|>.>rted  sx  ap|)eals  imm 
tlie  Ciiiirt  <it  Appeal,  of  wliidi  live  were  allowed  and  one 
dismissed;  there  was  also  an  a|iiH;.il  i'  in  the  Supreme 
t'<iurt  in  an  Onlario  case  which  was  nV  i\ed.  l'"rom  issue 
of  the  writ  of  sunnnons  to  the  linal  ilisp()siti<in  l)v  the 
Privy  Conned  there  is  no  need  for  two  years  to  elapse. 
So  much  for  the  civil  practice. 

On  the  criminal  side  the  story  is  somewhat  historical. 
When  Canada  was  concpiered  in  \J-,<)  the  h'rench  law  was 
nniversai-  it  was  of  course  liased  u|)on  the  koman 
law.  the  I'ivil  Law.  .\s  soon  as  the  liritish  con(|ncred 
Canada,  the  l-"n(;lish  criminal  law  was  intmduceil  and  the 
ICiiKlish  iriminal  law  has  continued  from  that  time  lo  the 
present.  The  criminal  law  is  under  the  jurisdiction  n  1 
of  the  provinces,  but  of  the  Dominion  Parliament  com- 
posed of  iiieml)ers  from  all  the  provinces.  It  is  true  that 
Provincial  LeKislatiires  have  [xiwer  to  make  certain  i|uasi 
criminal  offenses —  for  example,  the  watering  of  milk  and 
that  sort  of  thin;;  which  are  i|Uasi  civil  and  (|ifasi  criminal  — 
those  are  within  the  jurisiliction  of  the  prr>vnicc.  althonj,di 
the  Dominion  may  make  anythiuj;  a  crime.  The  other  dav 
I  said  to  a  lawyer  who  was  arguing  'o  me  alniut  a  certain 
matter  being  ultra  -Arcs.  "  If  the  Dominion  Parliament  saw- 
fit  they  could  make  it  a  crime  ixinisbable  by  capital  punish- 
ment for  a  man  to  chew  toljacco."  The  Domiuion  has 
jiower  to  make  anything  a  crime;  it  has  ab.solute  juri.s- 
<liction  over  criminal  law  and  criminal  procedure;  but 
not  over  the  constitution  of  Courts  of  criminal  jurisdiction. 
The  Courts  of  criininal  jurisdiction  are  constituted  bv  the 


pn.iim-i'^;    ...   ilijil    I -iK'.-ikiiif;   -ciKTallv  i    tin-   -ann-   ('..iiit 
uliivli   nil-,  tivil  i-.-iM'.  i.  ilii-  I'.iuri   wliii-h  trie,  iriininal 

llfii.iv  rX.,j  uf  liail  ilk-  l-;iij,'li.li  i-rirniiial  law  a-  iiiofli- 
lii-'l  \-A  iIh-  .laiMU-  i.f  iln-  provimc.  iK'lori'  O.iifciliM- 
aii  ill  ,1111 1  liv  ilu'  I'arliaiiuMit  "i  ( 'aiiaila  aficr  C'niifi'ilcratinii ; 
l>iit  ill  iSi)j  Sir  Joliii  rii.iiii|i.,iii,  llif  tlii'ii  I'riiiii-  Mini.tiT, 
iKniiin  lii'iMi  a  Jiiilyi-  liini.cll  in  \ova  Scolia.  .aw  the  pr.  .- 
prii'ty  nf  cip(|if\iiiK  lilt  i-riniiiial  1  and  ai'cMnlinnly,  with 
tlif  a.ssisiaiu'i'  (if  alili'  la\v>\T>  in  ii,.  ,  ImiH'.  nf  rarliainiMi! 
.Ill  I1..1I1  .i.lf,  ,,f  p..liiic..  he  in  i,Si,_.  cln-H  up  a  i'...k'  ..f  ilk' 
i-riniinal  law.  Tln'  jmlicaiiiiv  Aci  ..f  |S,S|  viTv  ik'.-irlv 
pn.M'il  ilk.  cU-aili  nf  „,iin.  ,,f  ilii.  ,,1,1  fiinjiy  iiii'ii  an. I  cni- 
111.11  l.-iw  men  aK..  in  ihe  l'r..v  incf  ..f  (Inian..;  Inn  thai 
ua-  ii..iliinH  li.  Ilk'  .li.niay  uliiili  -pit-ail  in  tln'  r.m!,-.  .1 
tiu'  lawMT.  will.  |i:aiiii-(.'il  in  ilk-  irinitiial  C'..in-N.  wlk-ii  tlk- 
(■..iK-  ..f  i.Sij..  wa-  pa  "I- I.  Tin-  .li.iiik-ii..n  hi-iui-i-n 
lVl..iiii-.  anil  iiiiMk-iiH-.nii.r.  ua>  alinli.hi-il.  l-'.M-rv  criiik- 
was  mack-  an  imlicialik-  ..liVii.t-.  All  tin-  l.caniifnl  litik- 
pitfalls  and  lii.lcs  thai  ..Id  i-riniinal  law\i-i--  u-til  1,.  liin.w 
■■11  wi-11  ahi.nt  in  indii-lnH-iil-.  etc.,  arc  lille.i  np  and  (l.iiie 
aw;iy  wiili.  Parliament  pn.vided  that  ilie  indielmeiit  nii;,'hi 
lie  in  the  .simplest  fiiriii.  s, ,  |,.n^  as  it  set  imt  and  explained 
ti.  the  allefied  eriniinal  what  it  .vas  he  was  eliar!,'ed  with.  If 
ilk-  inilietiik-m  used  the  wi.r.U  ,.f  the  statute  that  was 
eni.ii.i^h.  1-1. r  instance,  an  inilictmciit  fi.r  nuinlcr  is  ne\cr 
111. .re  than  three  lines  I. .1114:,  and  it  w..iild  read  like  this,  "  'I'he 
jnry  f..r  nir  I.urd  the  Kim;  present  that  John  Smith  on  the 
7th  nf  Septemher,  i()i  1,  at  the  City  of  Toronto,  nnirdcred 
'I'l.ni  Junes."  That  is  all  there  is  aln.nt  it.  There  are  no 
pitfalls  in  the  criminal  law. 

If  a  per.si.n  is  eharj,'ed  with  a  crime,  an  invcstijjation  is 
made  hy  a  ma),'islnite.  sometimes  hy  a  coroner.  Under 
the   old   practice,   of   c.n'.rse,   the   fiiuliiig   at   the   coroner's 


JiM|m-l  i-i'iilil  \k  hiiil  lii'i',.ri'  a  |jclit  jiin.  That  i^  n.. 
I' iiyiT  our  law.  l-.M-rytliiiiy  ot  a  i-piniinal  iiatiiri.'  v\liiili 
I-  tn  U'  irifil  liy  illc  IMkIi  Court  i-i.ini'^  ln-|.,ri-  a  Krainl  jury, 
rill-  aa-ii>f(l  lir<t  aiim>  ln-lorc  a  Mayi.iratis  lu'  In-  tin- 
riyht  t"  liavt  Iitn  full  ilciVin;  y.im.  nit...  uiincs-CH 
lallfd  ami  iNaiuiiii'il :  ami  it  ai  thv  roiuliisi..n  ilu-  Ma),'- 
i-lrali'  iliiiiks  ilicri-  i-  no  ra-i'.  lie  i-  ili>iiii,-.i-.|  — 
.■ilthuu(,'h  the  prijsi'i-iitcir  iiiav  ili'iuaiii!  tn  he  licniiwl  .nir  tn 
|iiM,i^-iiii',  in  «liii-|i  ca,i.  In.  i-,,ni,.,  \n:i,,n-  ihi-  ni'xt  Cr.iirt 
<pf  cuniiu'ti'iit  jurisijii-iioii,  [|  iIh.  Ma^i-trati-  iliiiik»  a  i-.i-t- 
lia~  liiTti  iiiaik'oiii.  Ill-  c. iiiiiiiii,  I', ,r  trial. 

SaM'  in  till-  i-a>e  ni'  iri-ason.  iiiunkT  and  a  few  othfr-. 
uiiliin  twi-iity-frjiir  hours  of  a  |itr.-on  ln-in),'  i-oiiiniilti'd  to 
jail  he  must  he  liroiij;lit  hcfori-  il' •  t'ouiity  Court  Jiid);i' 
Tlif  Coutitj  Court  JikIki'  •  i  JucIki'  of  inferior  jurisilittiou. 
Iiut  lie  must  have  heen  a  barrister  for  ten  vears  liefore  lii.s 
a|ipoiiitniem  and  oiiKht  to  know  as  niuih  law  as  a  1  li},'h 
Conn  Justice  —  anil  many  of  ilieni  do.  Cpon  l>einn  lirontjlit 
liefore  the  County  Court  Jndye.  the  alleged  criminal  is  told 
in  simple  laiiKuaKe  with  what  he  is  charged.  He  is  tolil, 
■■  N'liw.  yiju  have  a  rit;ht  to  lie  tried  liy  a  jury  Iwfore  the 
next  Court  of  C(im|)etent  jurisdiction"  (mentioning  the 
Court,  when  it  is  to  he  held,  etc.,  so  that  the  prisoner 
will  know  I.  "or  you  may  lie  tried  l)y  nv  forthwith  with- 
out a  jury."  In  nine  cases  out  of  ten  the  innocent  man, 
and  in  (|uite  a  number  of  cases  the  guilty  man,  thinks  he 
might  just  as  well  take  his  chances  with  a  Judge  as 
with  a  jury;  and  so  he  is  tried  by  the  Judge.  .\  simple 
form  of  charge  is  drawn  up,  an<l  the  Judge  tries  him; 
that  is  all  there  is  to  it.  So  you  see.  this  practice  of 
"  Speedy  Trials  "  as  we  call  it.  relieves  the  High  Court  of 
Justice  of  nearly  all  the  ciHminal  cases  with  the  exception 
of  murder  and  a  few  others.  We  have  not  had  treason 
for  some  years  in  Canada  and  we  are  not  likely  to  have 


i8 


another  crup  for  some  lime.  If,  !)'ivvever,  tlic  aecnsed 
elects  to  be  tried  by  a  jury,  tlie  ease  is  brought  liefore  a 
,rand  jury  (in  Ontario  of  thirteen).  Seven  may  tind  a 
bill.     The  bill  is  draw n  up  in  the  form  I  ha\e  dcscrilwd. 

The  trial  is  before  a  jury  of  twelve;  they  must  lie 
unanimous  either  one  way  or  the  otiier.  If  a  jury  cannot 
agree  I  almost  always  discharge  them  and  call  another, 
right  there  and  tlien.  and  gel  done  with  it.  Sonic  Judges 
prefer  rather  to  ])ostiK)ne  the  ca.se  to  the  next  assize  and  in 
the  meantime  coiumit  the  man  to  jail  or  let  him  out  on 
bail.  If  a  mistake  is  made  at  the  trial,  or  a  lawyer  iliiuks 
a  mistake  is  made  in  the  trial  —  these  are  not  i|uile  syu- 
onynious  e.\pressions,  you  know — if  it  is  snpixised  (that 
is  belter  I  ( laughter  )  that  a  mistake  has  been  made  during 
the  trial  on  ciuestious  of  law,  the  lawyer  may  ask  the  Judge 
to  reserve  the  case  lot  the  Court  of  Appeal  upon  that  i|ues- 
tion  of  law.  or  the  Judge  may  do  it  upon  his  own  motii.n 
without  being  re(|tiestcd  to  do  .so.  The  Judge  may  refuse; 
that  refusal  is  subject  to  apiwal.  If  he  has  granteil  the 
case,  that  goes  to  the  Court  of  .Xpueal,  and  the  Court  of 
.\p|>eal  of  five  Judges  detenuines  that  i|uesiion  of  law  and 
whetner  the  Judge  was  right.  In  mosi  cases  I  am  glad  to 
say  it  lias  l>een  found  he  was  right,  and  .so  the  appeal  goes 
by  the  board.  There  is  a  provision  in  our  Code  wliicli  has 
never  so  far  as  I  know  been  called  upon:  and  llial  is  iliis: 
in  case  the  conviction  be  al'lirnied  I)y  the  Court  of  .\ppeal 
by  a  divided  Court  there  is  an  ajipeal  to  the  Supreme  (."onrt 
of  Canada.  That  has  never  yet  so  far  as  I  know  l)een 
called  into  practice:  our  Court  of  .\ppeal  have  alwavs  been 
unanimous. 

This  is  the  simple,  every-day  practice  wliicli  has  lieen 
found  very  aehantageous  and  beneficial.  1  have  never  in 
all  my  thirty  years's  experience  at  the  Ontario  Bar  and 
on  the  Bench  taken  more  than  thirty  minutes  to  find  a  jury, 


19 


even  in  a  murder  case.  I  liave  never  yet  —  and  1  liave 
<le  fended  lots  uf  litem  and  I  have  liaiis,'ed  ([uite  a  iiumlier; 
1  do  not  mean  that  I  did  it  with  my  own  hands  —  I  trust 
that  I  should  not  hesitate  to  do  it  if  it  were  my  duty; 
j;reater  men  than  I  have  l>een  charged  with  having  exer- 
cised that  function  —  none  of  the  men  that  I  defended 
got  hanged  I  am  thankful  to  say.  though  there  are  two  "T 
three  in  Kingston  i>eniteutiary  to  welcome  me  when  1 
cliance  to  go  there  (laughter  I — [  have  never  yet  in  all 
my  exiKrience  (except  in  one  easel  seen  it  take  as  niucli 
as  four  days  to  try  a  murder  case.  In  murder  cases 
hefore  me  I  have  never  hecn  more  than  a  day  and  a 
ciuarter.  anil  in  most  ca.ses  less  than  a  day.  We  allow 
live  ex|>ert  witnesses  <»n  each  side  and  that  is  all.  .\n  expert 
witness  unless  he  has  examined  the  prisoner  liimseli  is.  uf 
course,  simply  going  to  give  opinion  evidence.  We  hring 
him  in  Court  to  listen  to  the  evidence.  If  lie  rei|nesi~  it 
he  iTiay  take  the  man  and  examine  hint  and  tlicu  give  an 
opinion.  We  do  not  have  six  or  eight  pages  of  a  hypu- 
thelical  ipiestion.  The  expert  is  asked  simple.  ])articularized 
questions.  Our  insanity  law  is  simple.  1  see  that  iii\ 
judgment  was  atTirmed  hy  the  Court  of  .\ppeal  since  1  canic 
to  this  city  in  a  ca.se  where  a  man  was  charged  with  murder. 
The  man  waited  for  another  on  the  street  and  shot  him. 
The  tirst  doctor  for  the  defense  was  called  and  was  asked. 
"Was  this  man  insane?"  "  Ves.  insane."  "In  what 
fonti?"  ".\n  incurahle  form  of  insanity,  paranoia  in  an 
advanced  stage."  "Did  he  know  the  nature  and  quality 
of  his  act?"  "Certainly."  "Did  he  know  that  what  he 
was  doing  was  wrong? "  "  W'hat  do  you  mean  hy 
wrong?"  says  the  doctor.  I  said,  "Wrong  in  the  sense 
of  heing  against  the  law."  Tie  says.  "  Ves.  undouhtedly." 
"What  then  was  his  mental  condition?"  "He  knew 
what  he  was  doing,  he  knew  it  was  against  the  law,  but  he 


JO 


liarl   ,-11.   incMMilile  inipiiU-  ic,  ,1,,  tliai   act,   his  puwer  of 
i"''^'""""   »as  ;;niR-  aii.l   hv   c.iild   „„t   help   sh.M,tiiig  the 
:".-"i"     'Ihe  niher  ,loct..rs  agreed.      I  eharf,'ecl  tlie  jurv,  "  If 
>nt,  hehcve  uhai  these  ,l„etor,,  say.  or  rather  nnless  n,',  v.nir 
'■ath  yuii   think  you  kii.m    i>elier  tliaii  these  ductors.  then 
it  is  y.iir  chity  1,.  Ii,„l  a  venhct  .1  ,:;„ihy.      We  are  an  ir.,n 
l'eo,,le  and   ue  iiave  an   in.n  law.      We  must  enforce  tlie 
law  .-.s  »e  hnd  ii,      \.,u  have  nn  more  ri-ht  to  cl,aiii;e  the 
la»  than  1  have,  and   I  have  nu  more  right  to  cha.i,i;e  the 
hiw  than  y,.nr  minister  lia~  a  ri,t;ht  to  take  the  word  'n..!  ' 
out  of  some  of  the  commandinenis  and  tell  vou  to  ,.1r.,   ,he 
eomtimndmcni  as   so  atnen.le.I  _  ,o  .,„  and  lie.  steal'  and 
■"in-dcr-.     Onr  law   is.   if  a  ,nan.  however  in.sane  he  mav 
I'e.  knows  what  he  is  ,loin.i;  and  knows  that  that  is  against 
the    law.   it    makes    ,„,   ,lifference   th-.   he    is    insane  -  he 
"HIM   not  he   found  not  guilty  ou  the  gnnnid  of  insanity. 
Om-  hK  says  to  a  man  who  alleges  he  has  an  irresistible 
'■"pulse.   •  I    shall  hang  a  ro,H.-  np  in   front  of  vonr  nose 
an.l  see  if  that  xvon't  help  you  some.'  "      ( .\ppla„'se.  I      We 
are  not  truuhled  much  with  expert  witnesses.      (Lattghter.) 
If  an  e.x|«?rt  witness  attempts  t„  give  an  opinion  as  to  what 
■  ittght  to  he  (lone  with  the  accused,  he  is  checked  —  that  i.s 
none  of  his  bn.siness.  it  is  not  for  him  or  for  me.  it  is  for 
the  [executive  to  say. 

Ottr  civil  practice  we  have  found  very  convenient  very 
spee<ly.  PIea,se  do  not  imagine  I  am  up  here  to  boast  about 
my  own  country  or  fi,Kl  fatilt  with  any  other  _  but  «e  have 
fottn.l  our  civil  practice  very  speedy,  and  a  man  can  have 
h.s  case  tried  just  abottt  as  .soon  as  he  wants  to.  In  ninety- 
n.ne  cases  out  of  a  hundred  the  delays  are  dne  either  to  the 
client  or  to  lawyers  who  do  not  want  t<,  have  the  case  tried 
They  are  skirmishing  for  a  settlement  or  looking  out  for 
something  else.  There  is  no  reason  why  a  case  should  not 
be  tried  within  six  months  of  the  writ  or  less      The  first 


->l 


case-  thai  UMT  caniu  l,L-i,„e  mc  inr  ,lcUTMiinai)..ii  ilial  hl-mi 
in  llie  I'rivy  Cnuncil.  I  Iu..-,nl  ,„  ,\|„il,  and  in  huu-  ,.|  tlu- 
lollou  injf  vear  it  had  ^unc  thnuiKli  all  ill..-  fana.lian  I  i.nn,. 
and  had  hmi  linallv  .k-icMiiihifd  hy  ilii-  I'rivi  Cdimcil. 
llu-iX'  is  no  rea-.,n  why  any  case  sh..iild  ii,,t  ]„■  mnchuled 
in  .nu-  cnnniry  in  k->>  ihan  ci-himi  nionthv.  TIut^.  j,  ,„, 
reason  why  a  man  ,,  ho  has  met  with  an  accideni  shonl.l 
not  have  his  case  tried  anywhere  thn.n.s,d.ont  the  conntrv  in 
less  than  six  nionihv  The  ,,m,iice.  as  I  have  ~ai,l,  we  have 
fonnd  convenient. 

There  are  tuo  i.lcas  »liich  are  llie  hasis  of  the  practice  ot 
law  in  different  conntries:  one  is  that  the  (.'onrls  are  a  sort 
"t  umpire  sittinsj  upon  the  watch  to  see  that  the  tw,.  me,i 
ti!,'ht  .,nt  this  dispnte  according  to  the  rales  of  the  faille.  It 
IS  not  a  matter  of  very  ^real  im|),>rtance  whether  a  man  j;ets 
liis  rishts  or  not.  Imt  it  is  a  matter  of  enormons  imix.nance 
tiiat  the  smarter  man  shonld  ^et  a  verdict.  That  is  the  ol.l 
idea.  The  other  idea  is  that  a  man  shonld  -et  his  rifjlns 
even  altlKuiKh  the  record  (^ets  in  a  shocking  state.  Von 
rememlwr  when  they  talked  alxnit  the  l-:nj;lish  Common  Law 
Proce.lnre  .\ct.  Maron  I'arke  said.  "Think  of  the  stale  of 
the  recrd'.-  Record  [  snp|»..se  I  ,,ni,dit  to  call  it  on  this 
comment.  "  Tln'nk  of  the  state  of  the  record."  That  was 
the  old  idea.  The  learned  Haron  snlfered  j;reatlv.  It  is 
fair  to  say  he  had  a  new  lca.se  of  life  when  he  moved  in  the 
Hou.se  of  Lords  as  Lord  Wenslevdale. 

Voii  will.  „,,  donht.  rememher  .Sir  William  ICrle.  when 
Raron  Parke  said.  ".My  monument  is  to  he  found  in  tlie 
si.xteen  volumes  of  .\Ieeson  and  Welshy."  replying.  "  Parke, 
if  there  had  l«en  .seventeen,  the  iieople  of  l-:n.i;Iand  would 
have  ri.sen  up  and  wiped  out  the  fourts  entirelv."  (  Wise's 
Index  had  not  then  heen  puhlished.  and  s,',  the  C.ml, 
esca])ed  extinction. ) 


22 


The  other  the<iry  is  that  Omrts  are  ii\stitiiteil  to  do  jus- 
tice hctueen  man  ami  man,  to  see  that  every  one  gets  his 
rights  irresi)eclivc  of  ilie  way  in  wliicli  liis  hiwyer  asks  for 
tliem.  ,\ccor(Hngly.  the  present  practice  which  we  try  to 
follow  — and  our  rnles  are  hiiil  down  specifically  in  that 
view  —  is  lo  j;et  ont  what  the  facts  are  and  it  the  pleadings 
do  not  enable  the  parties  to  jjrove  or  rely  n])on  these  facts, 
amend  the  pleadings.  If  one  party  is  inconvenienced  or 
put  to  disadvaiuage.  make  him  who  has  made  the  mistake 
pay  the  costs,  .\meiid  \'our  pleadings,  get  out  all  the  facts 
that  hear  on  the  issue  and  determine  the  matter  according 
to  the  very  rights  and  merits  of  the  case.  It  is  the  client, 
after  all.  who  has  to  pay  the  shot,  and  it  is  the  client  that 
should  \x  considered,  what  harm  if  tlie  record  does  get  a 
jolt  now  and  then. 

I  know  too  many  lawyers,  and  |)erhaps  too  many  Judges, 
look  u|)on  the  client  as  a  simple  Scotsman  looked  upon  his 
wife.  IXmald  met  Sandy  one  day  and  said  to  him,  "  Sandy, 
ye're  lookin'  verra  glum."  "  .\ye,"  said  Sandy,  "  ma  wife's 
deid."  ■•  Oh,  man,  an'  hoo  did  that  ha])pen?"  '■  Weel.  ye 
see,"  said  Sandy,  "  about  a  week  ago,  I  was  naukened  up 
i'  tlie  middle  o'  the  uicht  be  the  woman  grainin'  unco'  griev- 
ous—  an'  I  .says  to  her,  '  What's  wrang  wi'  ye.  vv^.-naiv  ' 
and  she  said,  '  Man.  but  I'm  verra  seek,  wtdl  ye  no  gang 
for  the  doctor?  '  and  I  said,  '  I  camia  gang  for  the  doctor 
in  the  middle  o'  the  nicbt.'  Hut  she  lay  there  grainin'  sae 
bad  that  I  coidd  na'  sleep,  and  I  hap|K".ied  to  think  o'  some 
IMioders  the  doctor  bad  left  for  me  the  day  afore;  and  .sae 
I  got  up  an'  lookit  at  the  directions,  an'  it  .said,  '  Take  ane 
every  three  Iiours,'  an'  I  thocbt  she  was  that  bad  that  I  bad 
better  gie  her  cneugh  —  sae  I  gied  Iier  three  at  ance.  an'  in 
half  an  hour  she  was  deid.  stane  cauld.  an'  I  had  to  gang 
for  the  doctor  in  the  middle  o'  the  nicbt  after  a'.  Weel. 
I  buried  her.  an'  I'm  unco'  lone'y.   for  while  she  had  her 


23 


faii'ts  like  a'  folk,  slie  was  a  K"i(l  wife,  tak'  her  a'  tliegitlier; 
but  was  it  no'  (JdiI's  mercy  I  didna  tak'  tliae  |K)oders 
mysel'?"     (Laugliter. ) 

In  the  theory  of  law  we  first  mentioned  the  lawyer  may 
have  the  misfortune  anil  mortification  of  losinff  a  rifjhteons 
catise  by  technicality;  but  it's  God's  mercy  that  he  is  not 
personally  ruined  or  deprived  of  his  rights.  That  is  the 
part  of  the  unhapi)y  client. 

Now,  gentlemen,  if  \ou  really  desire  and  so  express  a 
ilesire  through  your  Secretary,  that  I  should  write  you 
something  on  our  practice  I  shall  be  glad  to  do  so.  Per- 
haps what  I  have  said  will  h  ufficient.  1  thank  you. 
( Applause, ) 


